Skip to main content

tv   [untitled]    July 5, 2012 1:00am-1:30am PDT

1:00 am
conduct could a share of engage -- could a sheriff engage and that is not official misconduct? >> not to be arrested for a crime. not to commit domestic violence. chairperson hur: i am talking about wrongful conduct that does not constitute official misconduct. do you understand my question? >> i am trying to understand it for you. >> commissioner? it may be easier for this expert, given the nature of his expertise, not to try to answer the legal question about what is official misconduct, but maybe to testify about the question he is here to testify about, which is the standard of conduct for law enforcement officer. chairperson hur: it is a good point, and i am going there, thank you. >> thank you. chairperson hur: what wrongful
1:01 am
conduct could a sheriff engage in that does not relate to his duties as sheriff? >> i think all wrongful conduct would be problematic. the issue of whether or not it meets the criteria that you are asking, if it is official misconduct, i am not sure. chairperson hur: i rephrase, because council and a good point. does the wrongful conduct relate to the duty? what i am hearing from your testimony is that basically any wrongful conduct by a sheriff is going to relate to a duty, because of how wide-ranging the responsibility is. >> i see where you are saying. chairperson hur: is that your testimony? is there wrongful conduct that does not relate? >> wrongful conduct damages the position you hold and the organization you represent.
1:02 am
chairperson hur: that clarifies my questions. any other questions from the commissioners? the council have any questions? i think we should excuse chief lansdowne. thank you for your time. >> thank you for inviting me. chairperson hur: that concludes the scheduled witnesses we had today. i think there is some additional business we should conduct. the the parties have anything they would like to raise?
1:03 am
>> i think we have a schedule established. chairperson hur: do you have anything to report on ms. lopez, and willingness or unwillingness to pay for travel? >> i have not had a chance to consult the mayor yet. chairperson hur: when you think you will be able to know that? >> there was the earlier disturbance, and i do not know how that has affected things. if i cannot reach him this afternoon, i will make efforts to get in touch. how ms. lopez testifies will affect many logistics, so it would be helpful to know that. >> if it turns out we want to pursue the remote testimony route, do we have permission to contact staff directly to talk about facilitating that? chairperson hur: you do.
1:04 am
and i would ask for availability for that kind of consultation. thank you. something looming on the horizon for us, as we get through this testimony, is the practical matter of how a five member commission is going to rule. we are not in a position to receive a list of 200 proposed findings of facts and rule on each one. you can imagine that would be impractical. i welcome proposals from the party's on how to deal with that -- parties on how to deal with that. i have some ideas myself, but i would love to hear yours, if you have any. >> will try to keep it short. it is hard to say we will only need 30 findings, only 10.
1:05 am
i think we would probably state the actual factual conclusions we would propose, and then the supporting evidence, just to keep it as brief as possible, with regards to the factual findings. chairperson hur: mr. kopp? >> i think the commission could vote on each of the counts. i guess i am not persuaded by the need to make findings of fact. the way that i -- chairperson hur: that is all any -- that is one of the jobs under the charter. we have to make findings of fact. >> i think it says you have to make a recommendation. >> assemble a record is the phrase. >> and make a recommendation. chairperson hur: 1 at a time. >> you have to transmit a full record to the board, along with recommendations.
1:06 am
however, you are the fact- finding body, not the board of supervisors. presumably, part of the full record could the findings of fact. >> i do not presume. i am sorry to disagree with your language. but i think it could be done without debt burden some preparation and consideration. -- without that burdensome preparation and consideration. i have my own ideas about what a recommendation could look like, but it is probably not time to raise that. i just do not see the need to do this kind of a process, which might make sense in another tribunal, when it is not mandated. chairperson hur: here is one proposal. there are factual allegations of charges, perhaps one through 31. upon reading, and see in the mayor's case, it does not seen
1:07 am
many of those are disputed. it seems those that are disputed are the key fact we need to adjudicate. -- facts we need to adjudicate. what i would propose is that in the interim, while we have a few weeks before you put on your case, you let us know what paragraphs are in dispute, and which are not. that way, the commission could focus its resources on adjudicating the facts that truly are in dispute, and applying them to the charges that are issued. i am not saying that after you do that we will not let you propose findings, or let the mayor proposed findings. but that might help narrow the issues, now that you have seen the mayor's case.
1:08 am
>> just so i am clear, we would go through the amended written charges and identify those portions in dispute. chairperson hur: exactly. >> that sounds easier than the alternative. i would be willing to try. chairperson hur: ms. kaiser, any thoughts? >> i agree that findings of fact will be necessary, if there is any likelihood the sheriff will pursue an administrative mandate. the court, if it is going to review this procedure, will need findings of fact to understand the basis of the decision. i want to point out that consequence that is a little further down the road. chairperson hur: do the commissioners have any thoughts on the proposal? commissioner renne: let me say i have been pondering this question about what our reporters supposed to look like
1:09 am
-- report is supposed to look like, and what it is supposed to do beyond recommend the board affirmed the action of the mayor or take issue with that -- a firm -- affirm the action of the mayor or take issue with that. i guess i would welcome suggestions of what the parties think that should look like. one of the difficulties i think that we have coming in the way we are required to operate in the brown act -- it does not look like jurors getting together and talking among themselves, trying to come up with a document or decision. we have to do everything in public. i feel i need to have something substantial in front of me to
1:10 am
say this is a forum that looks like the way i want to try to resolve the problem. i have a totally open mind as to what that document will start to look like. what do you think would be the most effective document that would comply with what we are required to do? that is to prepare a record to send to the board of supervisors with our recommendation. what that record is, besides the transcript, the documents, and the evidence, i really am not at a point where i would say -- i guess i am not as firm as the chairman about that it has to be findings and conclusions of law. maybe that is what it has to be.
1:11 am
that certainly is the traditional way that one will proceed. i am open to any suggestion that makes sense. >> i would just say i agree the charter does not make your job easy, because it does not give a lot of guidance. i want the parties to consider two things. if the board of supervisors simply receives a recommendation that charges be sustained or not, the board of supervisors might wonder how they reached the recommendation. if this is somewhat like an ad in restrictive -- an administrative law procedure, the typical model in that type
1:12 am
of procedure, which i acknowledge does not fit this 100% -- that would involve finding fact and conclusions of law to aid the ultimate decision maker in making their decision. that is all i can offer at this point. commissioner renne: i appreciate that comment, because i have no experience on the administrative side. all of my practice has always been on the judicial side. i am comfortable in that area. if those in the city attorney's office who are familiar with what reports look like, coming out of and a ministry to the agency, which you might say is performing the same kind of function that we are expected to perform under the charter, that would be very helpful. >> i would also like to raise,
1:13 am
if it is important -- chairperson hur: i will give you an opportunity, but do you have a response to commissioner renne's question? >> we are happy to provide samples. i know your council is also knowledgeable about these issues. chairperson hur: is there any sort of report or opinion issued in and administrative proceeding like this? >> i will not see -- say there is one uniform model. i can provide some examples to the commission. it is essentially a written advisory. for example, someone seeking an administrative hearing about retirement benefits, the board
1:14 am
appoints a hearing officer. the officer conduct a hearing, takes evidence, and provides a written -- we might be more familiar with an opinion from a judge. that is not the final decision. it goes back to the retirement board to make the final decision. but it reads almost like a judicial opinion. >> a helpful analogy is a magistrate judge making a recommendation to a district judge, for those who have spent time in the judicial branch. chairperson hur: ok. if your side is agreeable, mr. kopp, it might be helpful to narrow down the dispute based on the allegations and the charges. i do think we need to make findings of fact.
1:15 am
when the you think you will be able to provide the commission with that, identifying the portions of the allegations that you dispute? >> before the next meeting. i do not know how much before that you could want them. if it is like the other document we are going to submit to you, it is going to be a couple of days before. chairperson hur: by the we keep the same date? i think it was july 17. ok. >> may i bring up the related issue, which i think fits index i do believe that, in addition to considering fact, there are also disputes of law here.
1:16 am
i am wondering if there is a mechanism that can be put in place of the commission can start to consider getting more information from the parties about questions of law, which are certainly and clearly, just listening to the commissioners, unsettled. chairperson hur: we definitely need that. i will say i think, speaking for myself, that the most pressing is whether the conduct that falls below the standard portion of 15.105e has to be in relation to the duties of the office or not. i think there are probably other legal questions the commissioners have, and that you may want to brief. if you want to brief them now, in the interim, while we have some time, we welcome that.
1:17 am
>> i am sorry to interject. from our perspective, these issues have been briefed. we were at the superior court, and then we filed our opening brief. i do not know what there is to add. i think you will wind up seeing the same information. >> can we ask a question? chairperson hur: sure. >> this is a question for ms. kaiser or mr. keith. do you agree that the second prong, the decency, has to be in relation to the office? i was thinking that when we had heard briefing on it at the prior session's that there was some agreement from your office that it did have -- that it had to relate to his office, and that you were trying to put on a case that showed it did relate to his office.
1:18 am
>> i think there are a couple of points of legal significance. this is not clear, i do not think, yet. what does "the duties of office" mean? is it the charter? is it the charter plus statutes? is it the charter, statutes, and what the sheriff says? how do you define it? >> setting that aside. >> setting that aside, it is not our position that the second prong has to relate to the duties of office, however that is defined. it is our finding that the second clause relates to the professional standards of the office, which is somewhat different than the actual duties of office. professional standards are something you must meet as you exercise -- as you fulfill that
1:19 am
position. not necessarily just win, you know, you are doing some particular charter doody. we believe they both have to relate to the office. but only one has to relate to the duties. the other ones relate to the standard of conduct for persons holding that office. >> ok. thank you. chairperson hur: perhaps the thing to do, then, before we make these findings -- i think we are going to have to have another session after the sheriff puts in his testimony, his case. does that seem to make sense? do any of you see a way we could resolve that without an additional session? >> a session for the purpose of argument and briefing? chairperson hur: that is what i
1:20 am
was envisioning. >> yes. i do not see how you can avoid it. chairperson hur: ok. we can talk about scheduling and really figure out and and date to this -- an end date to this, if we can. ms. lopez is available the 18th and 19th. clearly, having heard here would be preferable, but i understand limitations. chicken be here the 18th or 19th? -- she can be here the 18th or 19th? >> yes. >> do we know those dates yet? chairperson hur: can people commit to the 18th? >> that is what i have been hearing. chairperson hur: the 18th is tuesday.
1:21 am
the 18th is wednesday. i apologize. so, i am hearing that ms. haines is available to testify on july 18, in person. >> i have not heard directly from her lawyers, so i am relying on mr. kopp. chairperson hur: july 18? >> that is my understanding, yes. chairperson hur: we will have her on the 18th. you said ms. lopez could be available the 18th or 19th, so let us put in for the 18th. i think that is a good idea. >> both? chairperson hur: both. is mr. hennessy going to appear live? >> not as far as i know. chairperson hur: so there are
1:22 am
two witnesses, and they will appear july 18. >> we need to go over the sheriff mirkarimi's testimony to find out if we need rebuttal witnesses. i do not know whether we do. we might. we will look into it as quickly as we can. chairperson hur: everybody hold the 19th. do not release the 19th. i would like to know by july 6 -- is that doable? that is next friday. we can do the 10th, if that is a problem. >> we might be able to identify the witnesses by july 6, certainly. i do not know if they are going to be any part of it. it depends how quickly the court reporter may be able to get us a transcript. chairperson hur: let us to july 10, ok? let us know by july 10 whether
1:23 am
you have a rebuttal case you want to present. is that reasonable? >> yes. >> two issues, actually. one is we would like to have some date certain by which we will now -- know whether or not sure if tennessee -- sheriff hennessey will be here on the 18th. chairperson hur: it sounds like he is not appearing. >> is that the commitment? >> if he changes his mind, i will let everyone here on short order. -- hear on short order. chairperson hur: if we did not hear from you on july 10, we should exclude him. >> thank you. chairperson hur: after the 19th, i presume you will want some time to get us, by citation, the
1:24 am
evidence that supports whatever facts are actively in dispute. i will provide the parties with an opportunity to brief whatever legal issues they think need to be briefed. you do not have to submit them, but i think we should give you a chance to do it, if you feel like. how much time with you need to accomplish those two tasks specs -- tasks? facts, supporting evidence, and the brief on the legal issues. >> i am sorry. one thing that goes into this is in terms of the rebuttal witnesses.
1:25 am
are you going to ask us to proceed by declaration again? are we bringing people in for live testimony? one is faster than the other at this point. chairperson hur: i think we may just go with live testimony by rebuttal witnesses, if any. >> if any. chairperson hur: timing-wise, how much the need after the 19th? >> i would think at least a couple of weeks. it will have to be digested. i think minimum two weeks. >> we would prefer three. i would propose august 10. >> i think, honestly, we would like more time. but we want to get this in. three weeks, we can do. chairperson hur: i am going to -- mr. kopp's client is who find it the most pressing.
1:26 am
if that is agreeable to you, we will go -- >> ok. i am not available between the eighth and the 13th. chairperson hur: this is when the papers would come in, not the meeting. >> it is my understanding the board is out of session. no? >> that will not trigger -- record is what triggers the board involvement. our submission of the record is what triggers the board deadline. >> and you are intending to submit while the board is out of session? >> no. >> that is what i was mentioning -- chairperson hur: we will get to that. i am cognizant. i really want to get this schedule. >> it is diminished by the fact we can really see this is not going to move quickly.
1:27 am
we are happy to present three weeks, four weeks to them. chairperson hur: i am asking what you want. >> i think a minimum of three weeks. chairperson hur: august 10, to get that index -- in? my thought is that, after having those, the next meeting of the commission, whenever we can schedule that, we would come to a conclusion. we would deliberate on the findings of fact and propose conclusions of law, and we would make recommendations on whether there was official misconduct or not. at that hearing, i would be willing to entertain some short closing argument, if you all wanted to do it. it will have been a little while since we have heard the testimony. if you would prefer that, i think i would be willing to
1:28 am
entertain it. >> i would prefer it to ballooning at this briefing. but it does not have to be a long argument. chairperson hur: it will not replace your feelings about where the evidence lies. but if you want to do a closing, i can see it potentially being helpful. >> can i reserve my recommendation on that? chairperson hur: sure. >> i am concerned that i may have aided in commissioner renne's proposal that the parties make suggestions about how the decision look or how to help the commission. i do not know if that is something you still also wanted from the parties. i do not want to have brought attention away from that, by accident. chairperson hur: i am not sure i follow. if you have an additional recommendation for how the
1:29 am
papers should look, we can talk about it on the 18th. i am just telling you, whatever those papers are, when we want them. we will have your conclusions of law and findings of fact on august 10. the next question is, when should we need to discuss this? what is the commission availability? second full week of august. >> dandy. [laughter] >> the week of the 12th? chairperson hur: the 13th. that week. it sounded like commissioner renne was not available on the 13th. >> are we talking july? chairperson hur: